Whitefield v. Adams

The opinion of the court was delivered by ROWELL, J. Petitions of this kind are sustainable in this court only when “the extent or levy is irregular, informal, or not made according to law, so that the title derived therefrom is doubtful.” R. L. 1,596. It has been uniformly held that this statute does not apply to the- case of a void levy. Parker v. Parker, 54 Vt. 341. If the land levied upon includes a homestead, the location and boundaries of the homestead must be ascertained and set out before the sale, and the sale be of the residue. Acts, of 1884, No. 139, s. 8, and R. L. 1,895. This requirement is matter of substance, not matter of form merely, and a substantial compliance with it is essential to the validity of the proceedings. The ascertainment of the location and boundaries of the homestead is necessary in order to supply an important element for consideration in bidding at the sale, and the want of such ascertainment would tend greatly to lessen both the number and the amount of bids, whereby both debtor and creditor might suffer. Besides, as said in Fairbanks v. Devereaux, 48 Vt. 552, such ascertainment would be important to the debtor in determining whether he will redeem or not. In that case the levy is said to be irregular because the homestead was not set out. The court may have meant that it was more than irregular ; but whether it did or not, we think the proceedings in this case are void because the land was sold subject to the debtor’s right of homestead instead of setting out the homestead and selling [634] the residue. And the petitioner’s attorney says that is so if there was a homestead in the premises, but he says there was none, and that this is an answer to the claim that the proceedings are void for not setting one out. But we cannot act upon the assertion of counsel as against the officer’s return, which recognizes the existence of a homestead in the premises, and shows a sale subject to it instead of a setting of it out. Petition dismissed with costs.